Sunday, 27 December 2015

Rage in South London, a tragedy in Fort Greene - and why it matters to punish bad drivers

It was a frustration as intense as any I’ve ever felt. I’d
just been hit as I rode across Newington Causeway, near Elephant & Castle
in South London, by another cyclist who’d
ridden fast through a red light. Yet, when I made it clear I planned to call
the police, he picked up his bike and rode off as fast as he could. A mixture
of anger and frustrated impotence welled up inside me. The other rider, I
realised, would face no consequences at all for prioritising his own convenience
over my safety.

I’ve recalled how I felt following that incident in March
2009 several times in the last few weeks as I’ve contemplated New York City’s response to some of the
appalling tragedies on the city’s roads. New
York’s law enforcers often seem to shrug off instances
of astonishingly poor negligent driving – including many that kill entirely
blameless people – as casually as that rider six years ago picked up his fixie
and rode off. For example, Marlon Sewell, who drove his SUV onto a sidewalk in FortGreene
on December 6 and killed Victoria Nicodemus, currently faces only two,relatively minor charges: one for driving without a licence and the other for
driving without insurance.

Attendees at the vigil for Victoria Nicodemus: killed on the
sidewalk but, as far as Brooklyn law enforcement's concerned,
hey, it's the kind of thing any of us could do.

At a vigil at the site of the crash on December 22, Victoria’s brothers and
a series of politicians all lined up to demand Mr Sewell be prosecuted “to the
fullest extent of the law”. I recognised anger and frustration similar to what
I felt following the crash at Elephant & Castle - though clearly, given the
crash’s gravity, theirs was immeasurably deeper and more intense.

It’s a frustration that people concerned about street safety
in many parts of the world share. UK
cycling and walking activists often express astonishment at the low level of
charges that drivers who kill or maim people in the UK face and at the apparently light
sentences facing those convicted.

Yet I also occasionally hear dissenting voices. Isn’t it ironic,
they ask, that activists who mostly doubt the appropriateness of harsh prison
sentences call for them over road crashes? Rabi Abonour, a valued member of New York’s street safety
movement, supplied such a voice after Nicodemus’s death, writing that he was
“uncomfortable” with the calls for murder or manslaughter charges.

4. We have huge problems with criminal justice in this country. Putting more people in jail doesn't fix anything.

“We have huge problems with criminal justice in this
country,” he wrote. “Putting more people in jail doesn't fix anything.”

It’s a complaint that someone writing in the UK could also,
to a lesser extent, make, given the UK’s unusual propensity compared with other
European countries, for putting
people in prison.

Pushing for more enforcement, Rabi went on, was almost
certainly going to end up meaning more people of colour were prosecuted than
white people.

“We need to fix the racism of our criminal justice system
before we push for more felony charges against dangerous drivers,” he wrote.

The critical question is how to balance the appropriate
demand that drivers face consequences for their bad behaviour with the
understanding that the criminal justice system is an imprecise, often unfair
tool for achieving that goal.

Occasion for liberal guilt: the corner where I got into a row
that ended in a driver's receiving a worryingly
disproportionate fine.

I should stress that I yield to no-one in my propensity for
liberal guilt. I continue to feel uneasy, for example, about the punishment
meted out to a car service driver who grabbed for my camera and bike and yelled
abuse at me in March 2014. The driver – who was angry that I tried to take a
picture of his vehicle blocking a bike lane – was fined $3,050 – an excessive
amount, in my view – after he failed to turn up at the Taxi and Limousine Commission hearing about the case. Drivers who knew how to game the system –
enter a guilty plea for far lesser charges and have the gravest counts dropped –
generally faced fines of no more than $300. His punishment left me feeling I’d
participated in a rather grubby business. There is a tendency across the US criminal justice
system for prosecutors to use Draconian charges to scare defendants into
striking a plea bargain. It’s unsurprising – and deplorable - that there are
many reports of even the innocent being scared into accepting such deals.

Yet those of us on the political left often, I think, misunderstand
a critical part of the criminal justice system’s role. The system certainly
exists to deter criminals and to reform those who have already committed
crimes. But it is also vital that the system expresses society’s rage at those who
violate its rules and do unjustified harm to others. There is an inevitable and
appropriate element in many criminal sentences related to exacting retribution
for the wrongdoer’s violation of the norm that members of a society should not
do unjustified harm to one another. It is a vital part of society’s valuing of
people’s property, health and lives that it should be so.

New York criminal justice is relaxed about bad driving -
and people wonder how the streets end up looking like this.

It seems to me, based on media reports, that a criminal justice
system that valued human life appropriately would indeed charge Marlon Sewell with
serious offences resulting in a prison sentence of at least a few years. Sewell’s
licence had been suspended in March and he was cited three times for speeding in
one week in November. Witnesses say he was driving too fast when he mounted the
sidewalk. He can have been under no illusions either that he was legally free
to drive or that his driving was of an acceptable standard. The system
currently plans to treat Mr Sewell’s killing of her as essentially little more
than a matter of not having the right paperwork in order.

While it is, of course, fatuous to call the crime murder – it
lacked the targeted malice for that – it can be only because the killer was a
car driver that the case is currently being treated differently from other
deaths through negligence. It is hard to imagine that if Sewell had been
driving drunk – the one type of negligent driving most US prosecutors currently
take seriously – he would be facing such minor charges.

Yet the tragedy of many criminal justice systems worldwide lies
less in how they treat people like Marlon Sewell once they’ve killed someone than
in their readiness to let matters get that far. New York City’s authorities essentially
believe it more important that people should be free to drive around the city
as they please than that the unlicensed or uninsured should face regular checks
to prevent them from doing so. The authorities view it as more important that
traffic should flow freely and drivers’ privacy be respected than that
30-year-old Ms Nicodemus should be able to walk down a sidewalk unmolested by
speeding vehicles. It is at this stage – where a tendency to dangerous
behaviour can be detected, challenged and corrected – that the criminal justice
system should be working, in Rabi’s words, to “fix” things.

Two drivers block the bike box while a third runs a red
to make an illegal left turn: scenes from a culture
of consequence-free bad driving

The logic of the existing system, meanwhile, reflects grubby
realities about US
justice that both Rabi and I would like to alter. Unfettered driving is
tolerated at least in part because it is the means of transport that has come
to seem “natural” for the US’s
rich and powerful. Many in authority significantly underestimate driving’s
drawbacks because those who suffer the pollution, deaths and injuries are
disproportionately poor and, consequently, members of ethnic minorities. While
Mr Sewell is black and Ms Nicodemus was white, the concentration of car
ownership among the better-off means that well-off whites are
disproportionately likely to be killer-drivers. Poor members of ethnic
minorities are disproportionately likely to be their victims.

None of this is to say that those concerned about street
safety around the world should shrug their shoulders at the shortcomings of their
criminal justice systems and push for harsh punishments for dangerous drivers
regardless. It is vital, for example, that cities like New York increase their dependence on
automated cameras to detect routine speeding and right-of-way violations. Such
a move would, I have argued before, help both to reduce the problems caused by
police officers’ racial biases and to prevent appalling incidents like the
death of Sandra Bland in a Texas jail after she was stopped for a nonsensical,
minor violation. Activists should insist that in traffic enforcement, as in
non-traffic crime, law enforcement officials develop plans to detect people who
are apt to cause harm to others and seek to nudge them with minor punishments –
points on their licences, compulsory retesting or restrictions on their
licences – designed to make them address their behaviour and attitudes. Many of
New York’s
streets are also long overdue redesigns that would encourage better driving.

Allen St in Chinatown one recent morning:
a scene from a city that lets drivers off the hook.

It remains clear to me, nevertheless, that a driver takes on
a serious responsibility when he or she starts driving in a car. It is
impossible to believe that Marlon Sewell, after multiple run-ins with the law
over his driving, can have been unaware how serious the consequences of his
behaviour could be. As a result of his negligent driving, he has taken away
everything the 30-year-old art curator had and much that her family and
boyfriend had. The horror of the event, it seems to me, is less that people are
calling for Mr Sewell to face serious charges for his actions than that there
is such profound moral confusion over it. The New York Daily News, for example,
bafflingly quoted an apparent witness to the tragedy as largely exonerating Mr
Sewell, saying that he would have Ms Nicodemus’s death on his conscience forever.
The real villain, the piece alleged, was a bystander who, dazed after
witnessing the crash, took a bite from the pizza she had just bought.

Standing at the site of the crash on Wednesday with others,
it was both horrific to contemplate what had happened there and all too easy to
imagine. Other drivers kept venting their frustration at the slight congestion
from the vigil by honking their horns, blocking crosswalks and exhibiting the
kind of behaviour that contributes to New
York City’s appalling street safety record. As Ms
Nicodemus’s family and colleagues talked about her, the tragedy was not only
that she was clearly a unique and talented individual but to think of how the
near-daily other tragedies on the city’s streets must be wiping out others just
as brilliant and loveable.

An installation that Victoria Nicodemus'
colleagues made after her death: likely
to prove an empty plea as long as bad driving
is effectively ignored.

A harsh sentence for Mr Sewell would not, of course, either
bring back the woman he killed or on its own do much to solve the deep-seated problems.
But there was also an unmistakeable sense at the vigil that the criminal
justice system had been complicit in contributing to her death. It is appropriate to feel a surge of
anger at the behaviour of drivers like Mr Sewell. Good societies must demand
that people who breach the law so flagrantly face serious consequences.

It is obviously correct that the criminal justice system’s
biases should be eradicated. It is
obviously correct that unthinking, harsh punishments solve nothing. It is also
obviously correct that the US has relied on prison too much to solve its
social problems. In particular, the US has imprisoned far too many
young black men for drug offences that in a better-ordered society would not be
offences at all.

Yet it is equally clearly true, it seems to me, that a
system that defines Marlon Sewell’s driving on December 6 as warranting no more
than two warrants for technical violations is morally bankrupt. It is a
system that will continue to be incapable of preventing other people – mostly
poorer, more marginalised people than Ms Nicodemus – from dying. Their being
crushed on sidewalks, in crosswalks and bike lanes by drivers will then be
dismissed by the authorities as little more than an understandable slip.

The matter of safety for all road users calls for a sort of broken windows campaign. Changing road users' behaviours is a mighty challenge. But NYC has done this before, not of course wrt road users, but reclaiming dysfunctional neighbourhoods and responding constructively to antisocial behaviour.

Automatic speed and traffic cameras, box junctions and other traffic calming measures, etc, could mean a double-blind application of sanctions with no possibility of profiling or other bias. I'm sure many would regard this as draconian, but we have to recognise that the freedom of a person to be safe and secure on a sidewalk, crossing or on a bicycle for that matter, and that right should not be trumped by someone else's right to drive where and how they like.

Thanks for the comment. The recovery from the crisis of the 1970s and 1980s is, of course, an excellent comparitor for what needs to happen with street safety. However, it's also worth bearing in mind, I suppose, that there's controversy over whether broken windows really worked in turning around the crime situation or whether it was a bunch of other factors, including liberalisation of the financial services industry and the decline in the birth rate. It's certainly critical that any road crime strategy doesn't, as broken windows arguably did, take the focus off the most serious crimes while focusing on more minor ones. The NYPD's stings on minor cyclist infractions could be portrayed as a broken windows strategy, for example. It would be unfortunate if any stepping up of enforcement ended up targeting such essentially harmless behaviour.

There's an uncanny and moving parallel between a passage here and one by Hannah Arendt, right down to the word "wrongdoer":

Invisible Visible Man: "[I]t is ... vital that the system expresses society’s rage at those who violate its rules and do unjustified harm to others. There is an inevitable and appropriate element in many criminal sentences related to exacting retribution for the wrongdoer’s violation of the norm that members of a society should not do unjustified harm to one another. It is a vital part of society’s valuing of people’s property, health and lives that it should be so."

Arendt: "The wrongdoer is brought to justice because his act has disturbed and gravely endangered the community as a whole, and not because, as in civil suits, damage has been done to individuals who are entitled to reparation. The reparation effected is of an altogether different nature; it is the body politic itself that stands in need of being ‘repaired,’ and it is the general public order that has been thrown out of gear and must be restored, as it were. It is, in other words, the law, not the plaintiff, that must prevail."

Btw, the Arendt quote was the epigraph for my "Traffic Justice Policy Project" prospectus, from 2004. Available here: http://www.komanoff.net/cars_I/traffic_justice.pdf.

Thanks for the comment. The echo was coincidental. But I think both Arendt and I may have been drawing on a famous passage from Immanuel Kant that I quoted in a blogpost last year (http://invisiblevisibleman.blogspot.com/2014/12/a-protest-march-german-thinker-and-how.html). Kant says that a society dissolving itself should execute the last murderer in the jail because of his crime against the society. I disagree with him on the death penalty but it's a splendidly clear statement of one of the roots of criminal justice.

I can think of a couple of things that jailing violent and criminally negligent car drivers does in fact fix. Firstly, whilst the criminal is in jail, that person is not going to be killing or injuring anyone. Seems like a fix to me.

The other fix is that this has a vastly calming deterrent effect upon other car drivers who may be considering reckless or negligent behaviour.

Car drivers in countries like Japan or The Netherlands do not engage in the sort of behaviour that it is possible to see every day in New York. The Japanese and Dutch police are all over car drivers they see acting in a negligent manner BEFORE THEY KILL SOMEONE.

It is not necessary to go to far-away places like Japan or The Netherlands to see this deterrence in operation. Just cross the New York State/Ontario border.

Ontario boasts of the safest roads in North America. One of the key reasons is law enforcement of dangerous behaviours before someone gets killed. Among other things, someone driving a car on the highway at over 50 km/hr (31 MPH) will have the car confiscated, be handed an immediate drivers' license suspension and charged with an offence that is punishable by up to 6 months in jail.

Unlike NYC's "Right of Way" law, this law is enforced, so car drivers rarely do this.

Just one example, but enforcement and punishment does have a habit of working in those places where it is actually done.

Thanks for your comment. I guess it's evident from what I wrote that I disagree with a fair amount of Rabi's point, albeit I think it's a useful corrective. It's evident looking around the US at criminal justice policy that the routine handing out of lengthy prison sentences has done very little to affect the crime rate and has created multiple other problems. I think prison should be used only sparingly and I'm sceptical that drivers make the link between harsh sentences for, say, killing pedestrians and their own behaviour.

But I am convinced that, in especially egregious cases, it's a proper reflection of society's criticism of deadly driving to send dangerous drivers to prison and it's a disgrace that society currently shrugs off so many instances of bad driving.

The true fix is certainly, as you say, to introduce systematic enforcement that deters dangerous behaviour before it leads to deaths and serious injuries.

My rule of thumb is generally that if there is an early death (i.e., not of old age) that it ought not be treated as routine, and that an effort should be made to determine if a mistake was made and if it could be corrected. The NYPD's approach to traffic deaths does not follow this rule of thumb, nor do investigations of police who kill unarmed civilians.

At the same time, I am sorely tired of laws (and their enforcement) that serve no particular purpose towards this end. If there is no victim that we can identify, not even a statistical one, we should be deeply skeptical of the law. On the other hand we should be more willing to contemplate statistical crimes -- for example air and noise pollution, which both harm health and even (statistically) kill a few hundred thousand people each year ( http://lae.mit.edu/air-pollution-causes-200000-early-deaths-each-year-in-the-u-s/ )

The law in England and Wales is actually very similar to what you suggest. Pretty much any sudden, unexplained death leads to a coroner's inquest. With the introduction into UK law of the Human Rights Act, inquests have become much more involved and they can lead to detailed recommendations about, for example, the layout of a particular section of road. This development has, of course, been unpopular with some people and the current Conservative government wants to repeal the Human Rights Act. But the inquest system is critical to ensuring the legal system reflects the importance of preserving human life.

You're right, meanwhile, about victimless crimes. It's the foundation of our liberal system of laws that they fundamentally protect people from unjustified harm perpetrated by others. The drug laws, for example, are indefensible by that standard, are doing far more harm than good and clearly ought to be reformed.

I'm robustly confident that those aren't the motivations for Rabi, who has impeccable liberal credentials. It's clear that black people are treated disproportionately harshly in the justice system and the driver in this case is black. I'm merely arguing for a wider perspective on this issue.

Great piece of writing! But I'm not sure that drivers are disproportionately white or upper class. Outside of New York, nearly everyone drives, regardless of class. Also, you may want to consider that most hired drivers (a segment that racks up much of the mileage driven) tend to be poorer and ethnic minorities).

The solution is not harsher punishment to killers. That's too little too late. They don't prevent crashes, because drivers are convinced that the risks they take will never result in death. And if it does, insurance will cover... More consistent enforcement of small offenses ("broken windows " or "windshields", if you will), will change driver behavior.

That's where camera enforcement comes in. It does what no human officer can do, and it never discriminates based on race, class, or type of vehicle.

I fully agree with you on speed cameras (and wrote about them recently here: http://invisiblevisibleman.blogspot.com/2015/08/a-precinct-house-string-of-deaths-and.html). I agree that consistent enforcement is vital, as I outline in the post. It's a reasonable point (which I considered while writing) that for-hire drivers are disproportionately from minority backgrounds. I think, however, that mile-for-mile they are generally safer than other drivers (if only because they get more practice than others) albeit they're still involved in huge numbers of collisions.

I have to take issue, however, with the idea that minorities drive as much as others so don't have a different relationship to this whole matter. There's a very interesting academic paper here - http://socrates.berkeley.edu/~raphael/BerubeDeakenRaphael.pdf - that examines this very point. It finds that the access of black people and other minorities to cars is far lower even than that of similarly poor white people. This is presumably a result of racism in offering finance to black people, the higher numbers of people disqualified through having criminal records and so on. The paper is examining the extent to which this lower access to cars made black people more vulnerable when Hurricane Katrina hit New Orleans - but it seems to me also to illuminate an important difference with relation to suffering in road crashes.

About Me

I'm a hefty, 6ft 5in Scot. I moved back to London in 2016 after four years of living and cycling in New York City. Despite my size, I have a nearly infallible method of making myself invisible. I put on an eye-catching helmet, pull on a high visibility jacket, reflective wristbands and trouser straps, get on a light blue touring bicycle and head off down the road. I'm suddenly so hard to see that two drivers have knocked me off because, they said, they didn't see me.
This blog is an effort to explain to some of the impatient motorists stuck behind me, puzzled friends and colleagues and - perhaps most of all myself - why being a cyclist has become almost as important a part of my identity as far more important things - my role as a husband, father, Christian and journalist. It seeks to do so by applying the principles of moral philosophy - which I studied for a year at university - and other intellectual disciplines to how I behave on my bike and how everyone uses roads.